Kensington Gardens Retirement Village [2005] QBCCMCmr 368 (7 July 2005)

Number of Scheme:	30198
Name of Scheme:	Kensington Gardens Retirement Village
Address of Scheme:	45 Glen Kyle Drive BUDERIM QLD 4556

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Michael Joseph Kehoe, the co-owner of Lot 62

I hereby order that, if it has not already done so, the body corporate must, within one (1) month of the date of this order and in accordance with the requirements of the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 1997 consider each request made by Michael Kehoe, the co-owner of Lot 62 in his letter to the Body Corporate Committee dated 30 January 2005.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0152-2005

"Kensington Gardens Retirement Village" CTS 30198

APPLICATION

This application is by Michael Kehoe, the co-owner of Lot 62 (applicant) against the body corporate (respondent). The applicant is seeking an outcome that the body corporate process his application for additions/alterations without undue delay, and to process his application in the same manner as all other requests by residents.

JURISDICTION

"Kensington Gardens Retirement Village" Community Titles Scheme 30198 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about:

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate secretary for distribution to the owner of each lot (excluding the applicant) and the committee, and a copy of the application was provided to the body corporate manager. A submission was received from the body corporate secretary, the body corporate manager and a number of lot owners.

DETERMINATION

The applicant has shown that by letter dated 30 January 2005, he wrote to the committee requesting permission to install:

With the exception of request relating to the TV antenna, the applicant has referred to approved similar installations for other lots in the scheme. He states that it is current practice for an owner to make a written request and if the request relates to alterations for which approval has been given to other owners, verbal approval is given and confirmed by the committee at its next meeting.

The applicant has included a copy of the minutes of the committee meeting dated 17 February 2005 where it was relevantly determined that the following requests were approved:

The minutes indicate that the committee agreed that the request from Unit 62 would be considered at the next meeting.

The applicant contends that the committee has unreasonably withheld the requested approval. The application is supported by the submissions from 5 lot owners. Mr Sanderson (the body corporate secretary) main submissions were to the effect that the committee did receive the written request from the applicant, and that circumstances resulted in the applicant not receiving approval for the requested installations (with the exception of the extension to the trellis) until the 30 March 2005 letter from the secretary.

The submission from the secretary did not indicate that the approval given in the letter dated 30 March 2005 has been confirmed at a meeting of the committee, which it would seem, is the normal and accepted practice in this scheme. The applicant has not provided any further information regarding the status of this matter. For the reason that the body corporate has an obligation to act reasonably and for the benefit of lot owners, and to determine this matter, I have ordered that, if it has not already done so, the body corporate must consider each of the requests from the applicant in the letter dated 30 January 2005 within one month of the date of this order. Even though the order has not been made directly against it, the committee has the power under section 100 of the Act to make a body corporate decision.

I note that the committee has historically given approval for a variety of additions or alterations including the installation of awnings, sub blinds, air conditioning units, television antennas, and lattice work. I do not know the basis on which the committee makes decisions on these matters, other than to ensure that the requests for such work are processed as promptly as possible. While I am not determining whether the committee has the appropriate legislative power to make such decisions, I am concerned that the requested work may not be approved in accordance with the requirements of the legislation. For this reason, I have outlined the legislative provisions that the body corporate should take into consideration when dealing with these matters.

The scheme was established as a building format plan of subdivision. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings". Structural elements "of a building, includes projections of, and references to, structural elements of the building" (section 48C, Land Title Act 1994). Section 49C of the Land Titles Act 1994 provides that "except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling".

The plan of subdivision (SP 151745) shows Lots 51 to 66. These Lots are within duplex and standalone buildings, and include a small patio. Generally, the boundary on each Lot is the centre of the floor, wall or ceiling. The parts of scheme land which are not part of the Lots included in the scheme are common property (for example, the roof and the outside walls of each building). I note that By-Law 31 of the scheme By-Laws grants exclusive use of an identified area of common property to the owner of a Lot in the scheme, and provides a number of conditions.

Section 35 of the Act provides that owners own the common property as tenants in common which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property. A lot owner may only perform work on the common property if authorised by the Act or by a body corporate in accordance with the Act, or in accordance with a body corporate by-law. Section 114 of the Standard Module provides for improvements to common property by a lot owner for the benefit of the owner’s lot. Section 124 of the Standard Module makes provision for improvements by a lot owner to a part of the common property to which an exclusive use by-law applies. Section 146 of the Standard Module specifies that the body corporate must keep a register recording each authorisation for the owner of a lot to make an improvement to common property for the benefit of the owner’s lot. The following scheme By-Laws also apply; By-Law 1.1(7) definition of "Improvements"; By-Law 5 "Improvements to Common Property"; By-Law 8"Damage to Common Property"; By-Law 31 "Exclusive Use".

The work proposed by the applicant (based on the supplied photographs) would appear to relate to carrying out work (including improvements) to the building in which Lot 62 is located (such as the roof and exterior walls), and the parts of the scheme land adjacent to the Lot. These areas would appear to part of the common property, and the authorisation from the body corporate must be subject to the above requirements of the legislation and the body corporate By-Laws. It should be noted that By-Law 31.1(2) provides that a structure may only be constructed on an exclusive use area with body corporate authority (see section 124(1) and (2), Standard Module). However, any other improvements to an exclusive use area would be subject to the requirements of section 124(3) and (4) of the Standard Module.

While not part of the outcome sought, the applicant has sought a ruling on an electrically controlled garage door. However, as this matter did not form part of the outcome sought, I cannot make a decision of the nature mentioned by the applicant. This matter would require proper investigation with each party to the dispute having an adequate opportunity to put their case forward and to be heard on all relevant submissions. I am aware that submissions made in response to the application made reference to this issue, including the submission from the body corporate manager. However, these submissions only state a person’s general opinion regarding this matter. An issue of this nature may require consideration of factors including (but not limited to) the following; who installed the electric motor, is each garage door operated electrically, the damage to the electric motor, the past maintenance of the garage door motor or motors; and ultimately whether legislative provisions such as section 109 and section 120 of the Standard Module would apply. Consequently, I am not prepared to make a decision on this request. The applicant or another interested party should consider directing an enquiry regarding this matter to the Information Service of this office on 1800 060 119. If a dispute arises in relation to the maintenance or the insurance of an electric motor installed for the operation of a garage door, then the matter could be investigated under the dispute resolution provisions of the Act after the lodgement of a dispute resolution application.

It is clear from the submissions that there are issues relating to the management of the scheme and the actions of lot owners. It is most important that the body corporate committee and lot owners recognise their obligations under the Act. It is essential that the committee and owners act in a manner which ensures that the body corporate is able to fulfil its functions and obligations. Therefore, while some owners may have problems dealing with other owners, when it comes to body corporate business all lot owners must ensure that they give reasonable consideration to the particular body corporate issue ensuring that the body corporate satisfies its legislative obligation to act in a reasonable manner and for the benefit of lot owners.

(c)	a claimed or anticipated contractual matter about:
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kensington Gardens Retirement Village [2005] QBCCMCmr 368 (7 July 2005)